The Fifth Circuit has determined that whether a petitioner has acted with due diligence, such as would toll equitably toll the filing deadline for a motion to reopen, is a question of fact.  As such, when a petitioner is subject to the jurisdictional limitations applicable to certain criminal convictions, the court has no jurisdiction to review whether the petitioner has acted with the requisite diligence.

The full text of Penalva v. Sessions can be found here: